interim Decision #1382 

ELMER OF SEED 

In DEPORTATION Proceedings 

A-12936546 

Decided by Board August 19,1964 

Approval of a visa petition to accord respondent nonquota status on the basis of 

his marriage to a United States citizen does not preclude denial of respondent's 

application for adjustment of status under section 245, Immigration and 

Nationality Act, as amended, in deportation proceedings, in the exercise of dime-ration, based on doubt as to the bona fides of that marriage. 

CICAEGE : 

Order: Act of 1982-8ction 241(a) (2) [8 II.S.C. 3251(a) (2))—Entry as nonimmigrant, remained longer. 

An order entered by the special inquiry officer in the abovecaptioned case on February 20, 1963 grants the respondent voluntary 

departure in lieu of deportation as an alien who after entry as a. 

nonimmigrant visitor remained longer than permitted. The Board 

of Immigration Appeals on May 31, 1963 dismissed the respondent's 

appeal from the special inquiry officer's order. 

Thereafter, in October of 1963 the respondent moved the Board of 

Immigration Appeals to reopen the proceedings to permit further 

application for relief under section 245 of the Immigration and 

Nationality Act. Supporting the motion was evidence of the fact 

that the respondent's first wife had divorced him; that he had married 

another United States citizen and that a petition requesting nonquota 

status filed by his second wife had been accepted by the Immigration 

Service on October 8, 1963. The Board of Immigration Appeals on 

November 14, 1963 ordered the hearing reopened for the consideration 

of such applications for discretionary relief as may be filed. 

The respondent's further application for adjustment of status under 

section 245 was before the special inquiry officer in hearings accorded 

him on December 18, 1963 and January 21, 1964. The special inquiry 

officer is of the opinion that the respondent's marriages to citizens of 

the United States were solely for the purpose of procuring permanent 

residence in the United States. He denied relief under section 245 

688 
Interim Decision ,*1,382 

as a matter of discretion. The respondent appeals from this decision 

of the special inquiry officer, dated January 80,1964. 

The respondent is a native and citizen of Jordan, male, married, 

.33 years of age, who last' entered the United States at San Juan, 

Puerto Rico on July 19, 1961. He was admitted as a nonimmigrant 

visitor and thereafter granted- extensions until February 4, 1963 

within which to depart from the United States. The issue of deportability is not before us and the order entered by the special inquiry 

officer on February 20, 1963 granting voluntary departure is outstanding. 

The respondent testified that he met his present wife in October 

of 1962 when he was still married to his first -wife. According to his 

testimony he determined to marry her but waited until he actually 

was divorced by his first wife in March of 1963. When the respondent 

was interrogated by his attorney at the first hearing, he testified that 

he believed that he and his first wife had.come to an amicable family 

agreement. The special inquiry officer is of the opinion that the 

respondent must have been aware that divorce proceedings had been 

instituted and this factor when coupled with his apparent haste to 

remarry during the pendency of his first appeal, certainly renders 

his second marriage suspect. The special inquiry officer also states 

that his suspicion is further enhanced by the testimony of both wives 

as to the manner in 'which the respondent proposed to them, the length 

of time they knew him prior to the proposals, his interrogations as 

to their citizenship and marital status, and in the case of the second 

wife, her lack of schooling and general worldly knowledge. 

Counsel's brief in support of the appeal urges error in the special 

inquiry officer's decision denying respondent's , application for status 

as a permanent resident alien. He maintains that inasmuch as the 

District Director has approved a visa petition for nonquota, status 

filed by the respondent's second wife thereby acknowledging the bona 

fides of respondent's second marriage, the special inquiry officer's 

-decision denying relief under section 245 on the basis of doubt as to 

the bona fides of the said marriage is arbitrary, capricious and not 

supported by the facts developed during the reopened hearings. 

A petition to accord nonquota immigration status under section 

101 (a) (27) (A) of the Immigration and Nationality Act is filed pursuant to the provisions of section 205 of the same Act. It is a proceeding separate and apart from an application for relief under section 

245 of the Immigration and Nationality Act. Pursuant to 8 CFR 

205.1 the petitioner, who must be a citizen or an alien lawfully admitted for permanent residence, has the right of appeal to the Board 

of Immigration Appeals if the petition is denied by the District Director. The application before us is a proceeding initiated by the alien. 

689 ' 

768-466--65---45 
interim Decision #1382 

Under 8 CFR 245.2, an application for a change of status to that of 

a permanent resident alien may only be considered by a special inquiry officer in a proceeding under 8 CFR 242 after the alien has been 

served with an order to show cause. 8 CFR 242.8 provides the special 

inquiry officer with ample authority to exercise his discretion under 

section 245 of the Immigration and Nationality Act on. the basis of 

a conclusion which is inapposite to a decision reached by the District 

Director under sections 101(a) (27) (A) and 205 of the same Act. 

We find no error in the decision of the special inquiry officer. We 

will affirm the order granting voluntary departure entered on 

February 20, 1963 and will dismiss this appeal. 

ORDER: It is directed that the appeal be and the same is hereby 

dismissed. The order entered by the special inquiry officer on 

February 20, 1963 granting the alien voluntary departure in lieu of 

deportation and further providing for his deportation if the alien 

fails to depart when and as required, is hereby affirmed. 

690